Spotlight: Canadian Anti-Spam Law

Canada’s Anti-Spam Legislation (CASL) is among the strictest and most complex anti-spam laws in the world. Since its implementation in 2014, CASL has had a significant impact on the electronic marketing practices of many Canadian, U.S. and global businesses.

CASL applies to a broad array of electronic communications, including not only email, but also text messages and direct messaging on social media platforms.

While some exceptions and exemptions are available under the legislation, many are time limited and require significant record-keeping on the part of the business.

In all cases, the onus is on the sender of a commercial electronic message to be able to prove that it had the necessary consent or that the message fell under at least one of the available exceptions or exemptions.

CASL also governs the installation, in the course of commercial activity, of computer programs on another user’s device. This includes computers, smartphones, gaming consoles and other connected devices. Again, the prior express consent of the owner or authorized user is generally required, subject to certain narrow exceptions. Furthermore, depending on what the program does, the law may impose additional reporting requirements.

Consequences of non-compliance

Implications of non-compliance include significant potential fines: up to $10 million for corporations and $1 million for individuals, including directors, officers and agents of the corporation. Private enforcement actions, including class actions, were to have been allowed under CASL as of July 1, 2017, but the Government of Canada recently decided not to go ahead with this plan in light of stakeholder concerns. However, it is likely that Parliament will reconsider the private action issue in the near future.

Another consequence of non-compliance is the brand damage that can result from negative publicity relating to enforcement activity.